State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue
advisory opinions. The
ensuing staff advisory opinion is based solely upon the information
presented in your
correspondence.

Dear

I have received your letter in which you asked whether a public employee
may hold two
positions. You referred to the Sullivan County Manager and a town clerk
serving as "FOIL officer"
and to an assistant county attorney and a town board serving as "FOIL
Appeals Officer."

In this regard, the functions of a "records access" or "FOIL
officer" or that of appeals officer
are not generally full time positions; those positions are not civil
service titles, and there is generally
no restriction on who may carry out those functions.

By way of background, §89(1) of the Freedom of Information Law
requires the Committee
on Open Government to promulgate regulations concerning the procedural
implementation of that
statute (21 NYCRR Part 1401). In turn, §87(1) requires the governing
body of a public corporation
(i.e., a county, city, town, village, school district, etc.) to adopt
rules and regulations consistent those
promulgated by the Committee and with the Freedom of Information Law.
Further, §1401.2 of the
regulations provides in relevant part that:

"(a) The governing body of a public corporation and the head
of an
executive agency or governing body of other agencies shall be
responsible for insuring compliance with the regulations herein, and
shall designate one or more persons as records access officer by name
or by specific job title and business address, who shall have the duty
of coordinating agency response to public requests for access officers
shall not be construed to prohibit officials who have in the past been
authorized to make records or information available to the public
form continuing from doing so."

Section 1401.2 (b) of the regulations describes the duties of a records
access officer and states
in part that:

"The records access officer is responsible for assuring that
agency
personnel...

(3) upon locating the records, take one of the following actions:
(i) make records promptly available for inspection; or
(ii) deny access to the records in whole or in part and explain in
writing the reasons therefor.
(4) Upon request for copies of records:
(i) make a copy available upon payment or offer to pay established
fees, if any; or
(ii) permit the requester to copy those records..."

In short, the records access officer must "coordinate" an
agency's response to requests.
Frequently the records access officer is an agency officer or employee
who has familiarity with an
agency's records. For example, the town clerk is designated as records
access in the great majority
of towns, for he or she, by law, is also the records management officer
and the custodian of town
records.

When an agency denies access to records, the applicant has the right
to appeal pursuant to
§89(4)(a) of the Freedom of Information Law, which states in relevant
part that:

"any person denied access to a record may within thirty days
appeal
in writing such denial to the head, chief executive or governing body
of the entity, or the person therefor designated by such head, chief
executive, or governing body, who shall within ten business days of
the receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide access
to the record sought."

Further, the regulations promulgated by the Committee state that:

"(a) The governing body of a public corporation or the head,
chief
executive or governing body of other agencies shall hear appeals or
shall designate a person or body to hear appeals regarding denial of
access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor
and advising the person denied access of his or her right to appeal to
the person or body established to hear appeals, and that person or
body shall be identified by name, title, business address and business
telephone number. The records access officer shall not be the appeals
officer" (section 1401.7).

In consideration of the foregoing, it is clear that a town board,
for example, is authorized to
determine appeals, or that the head or governing body of an agency
may designate a person or body
to carry out that function.

I hope that the previous commentary serves to clarify your understanding
and that I have been
of assistance.